Considered and decided by Huspeni, Presiding Judge, Randall, Judge, and Peterson, Judge.

S Y L L A B U S

I. Evidence that an employee participated in an investigation at the request of a public body or
office is sufficient to prove that the employee engaged in conduct protected under the whistleblower
statute, Minn. Stat. § 181.932, subd. 1(b) (1996).

II. Summary judgment in favor of defendants in a defamation action is proper when the plaintiff fails
to present sufficient evidence to prove the essential elements of defamation.

O P I N I ON

After respondent Rgnonti & Associates, Inc. (Rgnonti) discharged appellant Rebecca Bersch from
employment, Bersch brought this action against Rgnonti and respondent Frederick Rgnonti,
Rgnonti's president and sole shareholder. Bersch alleged a claim under the whistleblower statute
and a defamation claim. The district court granted respondents' motion for summary judgment on
both claims, and judgment was entered accordingly. We affirm the summary judgment on the
defamation claim, reverse the summary judgment on the whistleblower claim, and remand the
whistleblower claim for trial.

FACTS

Bersch was employed as an investigator by Rgnonti, a private investigating firm, beginning July 2,
1992. She was later promoted to case manager, a position supervising the work of investigators.

Rgnonti had a contract with the Minnesota Department of Labor and Industry (department),
worker's compensation division special compensation fund (fund), to investigate the validity of
workers' compensation claims. In about April 1994, Frederick Rgnonti discovered evidence that
Rgnonti's former office administrator had been involved in improper business dealings with the fund.
Among the evidence were audiotapes containing recordings of conversations between the office
administrator and the fund's director. On the tapes, the fund's director asked the office
administrator to have Rgnonti conduct a sting operation for which the fund did not have funding
authorization. To pay for the sting operation, the fund's director instructed the office administrator
to overbill the fund for work performed on other workers' compensation cases.

In June 1994, Frederick Rgnonti notified the department that he had discovered an unusual billing
arrangement between the department and Rgnonti. The Office of the Legislative Auditor then began
an investigation of Rgnonti. In January and February 1995, auditors from the legislative auditor's
office were on site at Rgnonti investigating workers' compensation files. Bersch cooperated with the
auditors, answered their questions about files she had worked on, and provided documents when
requested. Requests for information came to Bersch through Frederick Rgnonti.

In April 1995, Rgnonti assigned a different employee to perform Bersch's case management duties
and assigned Bersch to perform administrative tasks one day per week and investigative duties on
an as-needed basis. As a case manager, Bersch was a salaried employee. When she was
reassigned, Rgnonti paid her only for hours actually worked and did not guarantee her any minimum
number of hours per week. As a result, Bersch's income decreased due to a lack of assignments.
Rgnonti's business was slow at that time, and the size of its staff had decreased considerably.
Nonetheless, Bersch contended that when she was promoted to case manager, Frederick Rgnonti
had promised her a guaranteed salary even if business became bad.

In August 1995, investigators from the legislative auditor's office requested a formal statement from
Bersch. Bersch was reluctant to give a voluntary statement and requested that her statement be
subpoenaed. Frederick Rgnonti told her to talk to Rgnonti's attorney, Tom Hunziker, who would
represent her in giving her statement. Bersch delayed contacting Hunziker and eventually hired her
own attorney, David Warg. On October 9, 1995, after Warg obtained a grant of immunity for
Bersch's testimony, Bersch made a confidential, sworn statement to the legislative auditor's office.

Bersch alleges that in September and October 1995, Frederick Rgnonti was very angry with her
because she had retained her own attorney instead of allowing Hunziker to represent her. Bersch
also alleges that Frederick Rgnonti falsely accused her of failing to maintain contact with the office
and failing to properly perform and follow through on work assignments; directed her to lie during
her statement; and directed her to say that he did not pad bills and to say that she knew nothing
about a specific investigation. Bersch contends that other employees harassed her about her
statement but she does not cite evidence connecting Frederick Rgnonti to the harassment. Bersch
testified that some employees accused her of committing criminal acts and that one of the
employees admitted that the accusation had come from Frederick Rgnonti.

By mid-October 1995, Bersch was unable to work due to health problems and was placed on
paid disability leave. In November 1995, the Office of the Legislative Auditor issued a report
concluding that the department had overpaid Rgnonti by more than $50,000. In February 1996,
Bersch signed a release permitting the release of her statement to the Dakota County Attorney's
Office. After Bersch signed the release, Frederick Rgnonti contacted her and said that he had
heard that her statement was very damaging to him. Rgnonti discharged Bersch from employment
effective June 3, 1996.

ISSUES

I. Did the district court err in granting summary judgment in favor of respondents on Bersch's
whistleblower claim?

II. Did the district court err in granting summary judgment in favor of respondents on Bersch's
defamation claim?

ANALYSIS

On appeal from a summary judgment, this court must review the record to determine whether any
genuine issues of material fact exist and whether the district court erred in applying the law.
Offerdahl v. University of Minn. Hosps. & Clinics, 426 N.W.2d 425, 427 (Minn. 1988). We
must view the evidence in the light most favorable to the nonmoving party. Id.

[S]ummary judgment on a claim is mandatory against a party who fails to establish an essential
element of that claim, if that party has the burden of proof, because this failure renders all other
facts immaterial.

Lloyd v. In Home Health, Inc., 523 N.W.2d 2, 3 (Minn. App. 1994).

I.

Statutory interpretation is a question of law subject to de novo review. Metropolitan Sports
Facilities Comm'n v. County of Hennepin, 561 N.W.2d 513, 515 (Minn. 1997).

Minn. Stat. § 181.932, subd. 1 (1996) provides:

An employer shall not discharge, discipline, threaten, otherwise discriminate
against, or penalize an employee regarding the employee's compensation, terms,
conditions, location, or privileges of employment because:
(a) the employee, or a person acting on behalf of an employee, in good faith,
reports a violation or suspected violation of any federal or state law or rule adopted
pursuant to law to an employer or to any governmental body or law enforcement
official;
(b) the employee is requested by a public body or office to participate in an
investigation, hearing, inquiry; or
(c) the employee refuses an employer's order to perform an action that the
employee has an objective basis in fact to believe violates any state or federal law
or rule or regulation adopted pursuant to law, and the employee informs the
employer that the order is being refused for that reason.

To establish a prima facie case under the whistleblower statute, an employee must show that (1)
she engaged in statutorily-protected conduct; (2) the employer took adverse action against her; and
(3) there was a causal connection between the protected activity and the adverse action.
Rothmeier v. Investment Advisers, Inc., 556 N.W.2d 590, 592 (Minn. App. 1996), review
denied (Minn. Feb. 26, 1997).

The parties dispute whether Bersch presented sufficient evidence to prove that she engaged in
statutorily protected conduct. The district court concluded that the evidence was insufficient to
prove that Bersch was requested to participate in the legislative auditor's investigation of Rgnonti.
We disagree. Although Bersch participated voluntarily in the investigation, in that she cooperated
with investigators and was not forced to participate, she did not initiate any communications with
personnel from the legislative auditor's office. Investigators from the legislative auditor's office asked
her to provide information. Request means [t]o ask (a person) to do something. The American
Heritage Dictionary 1533 (3d ed. 1992). When the words in a statute are clear and
unambiguous, a court must give effect to the plain meaning of the language. State v. Wetsch, 511
N.W.2d 490, 491 (Minn. App. 1994), review denied (Minn. Apr. 19, 1994). Under the plain
meaning of the word request, Bersch's participation in the investigation was requested.

Respondents argue that because Frederick Rgnonti encouraged Bersch's participation in the
investigation, her participation was not requested by a public body or office. We disagree. Bersch
presented evidence that the legislative auditor's office wanted information she possessed and took
the necessary steps to obtain the information. The fact that Frederick Rgnonti encouraged Bersch's
participation in the investigation and communicated requests for information to her does not
override or negate the legislative auditor's requests for information. Evidence that Bersch's
participation in the investigation resulted from the legislative auditor's office's requests for
information was sufficient to establish that Bersch participated in the investigation at the request of a
public body or office.

The district court also concluded that the evidence was insufficient to prove that Bersch engaged in
statutorily protected conduct because there was no evidence that the information provided by
Bersch benefited the public. We conclude that it was not necessary for Bersch to present evidence
that the information she provided benefited the public.

The popular title of the [whistleblower statute] connotes an action by a neutral --
one who is not personally and uniquely affronted by the employer's unlawful
conduct but rather one who blows the whistle for the protection of the general
public or, at the least, some third person or persons in addition to the
whistleblower. Were it otherwise, every allegedly wrongful termination of
employment could, with a bit of ingenuity, be cast as a claim pursuant to [the
statute].

But in an opinion released after the district court reached its conclusion in this case, the supreme
court explicitly rejected the argument that Williams reads into the whistleblower statute a
requirement that an employee's report must benefit the public. Hedglin v. City of Willmar, 582
N.W.2d 897, 902-903 (Minn. 1998). The supreme court stated that the language from Williams
quoted above is dictum and described it as cautionary language. Id. at 903.

Furthermore, Bersch asserted her whistleblower claim under Minn. Stat. § 181.932, subd. 1(b),
which pertains to activities initiated by a public body or office. In contrast, Minn. Stat. § 181.932,
subd. 1(a), (c), pertain to activities (either words or actions) initiated by an employee. Because
Minn. Stat. § 181.932, subd. 1(b), applies only when a third-party requests an employee's
participation in an investigation and cannot apply to claims arising from an employee's unilateral
actions, the concern that any wrongful discharge claim could be characterized as a whistleblower
action does not apply to claims under Minn. Stat. § 181.932, subd. 1(b).

Construing Minn. Stat. § 181.932, subd. 1(b), to require that information provided by an employee
must benefit the public interest could result in employees who participate in the same investigation at
the request of a public body or office being treated differently under the statute. Employees who
provided information useful to the investigation and then suffered adverse employment action would
have a whistleblower claim, while employees who possessed no useful information or were not
asked questions that elicited useful information would have no recourse under the whistleblower
statute. We see no basis for such an inconsistent application of the whistleblower statute.

The public interest served by Minn. Stat. § 181.932, subd. 1(b), is the interest in having employees
participate in investigations when requested to do so by a public body or office without fear that
their participation will result in negative employment consequences. We decline to construe Minn.
Stat. § 181.932, subd. 1(b), as requiring an employee to prove that her conduct furthered any
additional public interest or that the investigation itself directly concerned the public interest.
Evidence that an employee participated in an investigation at the request of a public body or office
is sufficient to prove that the employee engaged in conduct protected under Minn. Stat. § 181.932,
subd. 1(b).

Regarding the adverse action and causal connection elements of a prima facie case under the
whistleblower statute, Rgnonti discharged Bersch from employment in June 1996. In February and
March 1996, after Bersch allowed her statement to be released to the Dakota County Attorney's
Office, Frederick Rgnonti told Bersch that he had heard that Bersch's statement was very damaging
to him. Bersch presented evidence that Frederick Rgnonti attempted to control the information
Bersch provided to the legislative auditor's office and that he was angry at her because she hired
her own attorney to represent her in giving a statement to the legislative auditor's office instead of
having Rgnonti's attorney represent her. Also, Bersch was reassigned from her case management
position to a lower-paying position following her initial involvement in the legislative auditor's
investigation. The evidence was sufficient to raise a fact question regarding whether Bersch's
employment was terminated because of her participation in the investigation.

II.

To prove a defamation claim, a plaintiff must establish

that the alleged statements were made, that they were communicated to someone
other than herself, that they were false, and that, as a result, her reputation was
harmed.

Bersch alleges that respondents made three defamatory statements about her. First, three Rgnonti
employees accused Bersch of requesting immunity for her statement because she had been involved
in criminal activity. Bersch testified that one of the employees admitted that Frederick Rgnonti was
the source of the accusations. The district court found that Bersch's claim regarding this statement
failed as a matter of law because the only evidence Bersch presented to show that Frederick
Rgnonti was the source of the accusation was inadmissible hearsay evidence. Bersch argues that
the evidence that Frederick Rgnonti was the source of the accusation is not hearsay and is
admissible as an admission by a party-opponent under Minn. R. Evid. 801(d)(2). That rule,
however, generally applies to a party's own statement, to a statement made by a person authorized
by the party to make the statement, and to a statement made by a party's agent or servant. The
evidence that Bersch presented to the district court was her own statement. Bersch cites no
authority applying the admission by a party-opponent rule to a statement that one party to a lawsuit
makes about the opposing party. The district court must disregard inadmissible hearsay evidence
on a motion for summary judgment. Murphy v. Country House, Inc., 307 Minn. 344, 349, 240
N.W.2d 507, 511 (1976) (citing Minn. R. Civ. P. 56.05).

Second, someone sent an anonymous fax to the Minnesota Board of Private Detectives stating that
Bersch was a convicted felon. No evidence connects respondents to the fax.

Third, Frederick Rgnonti and a Rgnonti employee told the Fortis Benefits Group, a disability
insurer, that Bersch had received a private investigator's license and might be working while
collecting disability benefits. Bersch does not cite to evidence showing that any of the statements
made to Fortis were false. Statements made in good faith and communicated among an employer's
agents in the course of investigating or punishing employee misconduct are privileged, and privilege
is a defense to defamation. Ferrell, 557 N.W.2d at 566.

Bersch failed to present sufficient evidence to prove the essential elements of a defamation claim.
She did not present admissible evidence that respondents made the first statement or any evidence
connecting respondents to the second statement. She did not present evidence that any of the
information communicated to Fortis was false.

D E C I S I O N

The district court properly granted summary judgment in favor of respondents on Bersch's
defamation claim. The district court erred in granting summary judgment in favor of respondents on
Bersch's whistleblower claim. We reverse the summary judgment on the whistleblower claim and
remand the claim for trial.